Most people who ask about the H-1B have one of two problems: they are a foreign professional trying to understand whether and how they can work in the United States, or they are an employer trying to figure out whether they can hire someone who needs visa sponsorship. The H-1B process touches both, with different obligations and considerations for each side.
This guide covers the full H-1B process from initial registration through extension and transfer, including the employer obligations that are most often overlooked.
What the H-1B Is
The H-1B is a nonimmigrant (temporary) work visa that allows US employers to hire foreign workers in specialty occupations. A specialty occupation is one that theoretically requires at minimum a bachelor's degree, or its equivalent, in a specific field directly related to the duties of the position. Common H-1B occupations include software engineers, data scientists, financial analysts, architects, and similar professional roles.
The H-1B is employer-sponsored, which means the employer files the petition, and the visa is tied to that specific employer. If you change jobs, you need a new H-1B petition from your new employer (though you can work with the new employer while the transfer petition is pending).
The Cap and Lottery System
Congress sets an annual numerical cap on H-1B visas: 65,000 visas are available in the general category, plus an additional 20,000 reserved for beneficiaries who hold a master's degree or higher from a US institution. When applications exceed the cap, USCIS conducts a lottery to select which petitions to adjudicate.
The registration and lottery process works as follows. During a window in March (typically the first two weeks), employers register electronically with USCIS for each employee they want to sponsor. Registration costs $215 per beneficiary. USCIS then conducts a random selection from registered applicants in April. Employers whose registrations are selected are notified and have a window (April through June) to file the full H-1B petition. Petitions approved under the annual cap have a start date of October 1.
Cap-exempt employers, primarily universities, nonprofit research organizations, and government research entities, can file H-1B petitions at any time without going through the lottery.
What "Specialty Occupation" Actually Means in Practice
On paper, the specialty occupation requirement sounds straightforward. In practice, USCIS scrutinizes it carefully, especially in technology roles. The issue arises when employers use broad job titles like "programmer" or "IT consultant" for positions that USCIS does not believe inherently require a specialized degree in a specific field.
To establish specialty occupation, the employer typically needs to demonstrate one of four criteria: the position normally requires at minimum a bachelor's degree in a specific specialty; the degree requirement is common in the industry for parallel positions; the employer normally requires a degree for the position; or the specific duties are so complex and unique that they can only be performed by someone with a degree in a specific field.
USCIS has issued many Requests for Evidence (RFEs) challenging specialty occupation for software development roles in particular, arguing that not all software positions require a computer science degree. Employers sponsoring these roles benefit from detailed job descriptions that emphasize the specific technical complexity requiring specialized education.
Employer Responsibilities Under the H-1B
Sponsoring an H-1B employee comes with significant ongoing obligations that many employers underestimate.
Before filing the H-1B petition, the employer must file a Labor Condition Application (LCA) with the Department of Labor. The LCA is a public document in which the employer attests to paying the prevailing wage for the position, that working conditions will not adversely affect other workers, that there is no strike or lockout at the worksite, and that employees have been notified of the LCA filing. Prevailing wages are determined by the DOL and vary by occupation, experience level, and geographic location. You must pay the H-1B employee at or above the prevailing wage for their entire period of status.
Employers must maintain a Public Access File containing the LCA, documentation of the wage determination, and a notice of filing. This file must be made available to any member of the public who requests it.
If the company has a layoff, employers have specific notification obligations to H-1B employees. If an H-1B employee is laid off, the employer is liable for reasonable costs of return transportation to their home country, and the employee's status ends. Employers who terminate H-1B employees without following proper procedures face liability for back wages and other damages.
The Full H-1B Timeline
Understanding the timeline is critical for workforce planning. Here is how the standard cap-subject H-1B process flows:
- March (first two weeks): Electronic registration window opens. Employers register and pay the $215 fee per registrant.
- Late March: USCIS conducts the lottery and notifies selected registrants.
- April 1 through June 30: Window to file the full H-1B petition for selected registrations.
- Summer: USCIS adjudicates petitions. Premium processing (currently $2,805 extra) guarantees a response within 15 business days, not approval.
- October 1: Earliest start date for cap-subject H-1B approvals.
From registration to start date is approximately six to seven months if everything proceeds without RFEs or delays. RFEs can add two to four months to the timeline. This means employers who want a foreign national employee to start in October need to be planning and registering in February or March of that year.
H-1B Extensions
The initial H-1B is granted for three years and can be extended for another three years, for a maximum of six years total. Extensions beyond six years are available if the employee has an approved I-140 immigrant visa petition (a step in the green card process) that has been pending for at least a year, or if a priority date has been established for at least a year. For employees from countries with long green card backlogs (India, China), extensions beyond six years tied to pending I-140s are common and can continue indefinitely while the green card is pending.
H-1B Transfers
One of the most important features of the H-1B is portability. An H-1B worker can change employers while maintaining their status, as long as the new employer files an H-1B transfer petition before the employee begins working for the new company. Under H-1B portability rules established by the American Competitiveness in the 21st Century Act (AC21), employees with a pending H-1B transfer can begin working for the new employer as soon as the petition is received by USCIS (a receipt notice issued), not when it is approved. This enables relatively seamless job changes without waiting months for approval.
Common Denial Reasons
Understanding why H-1B petitions get denied helps employers and applicants prepare stronger filings.
- Specialty occupation not established: The most common denial reason. USCIS concludes the role does not require a specific degree in a specialized field. Solution: detailed job descriptions, industry evidence, and documentation that competitors require the same degree.
- Degree not related to the role: USCIS requires the beneficiary's degree to be in a field directly related to the position. A mechanical engineering degree for a software role raises questions. Solution: explain the connection between the specific degree and the specific duties.
- Wage below prevailing wage: If the offered wage does not meet the DOL prevailing wage for the occupation, location, and experience level, USCIS will deny. Solution: confirm prevailing wage before setting compensation.
- Employer-employee relationship not established for owner-employees: USCIS scrutinizes H-1Bs where the beneficiary has a controlling ownership interest in the sponsoring company. A founder or majority owner cannot easily sponsor themselves on an H-1B. Other visa categories are typically more appropriate.
What to Do After a Denial
A denial is not necessarily final. Options include filing a motion to reopen (arguing the decision was in error based on the existing record) or a motion to reconsider (presenting new evidence). If the denial was in the lottery-exempt context, you may be able to file a new petition immediately. For cap-subject denials, the next opportunity is the following year's registration cycle.
Working with an experienced immigration attorney significantly improves the odds of a successful response to an RFE or denial, and reduces the chance of a preventable error in the initial filing. For a broader view of your immigration options, see the entrepreneur's guide to immigration. If you received an RFE or denial and are unsure of your next step, our post on immigration paperwork mistakes that can cost you your visa covers the most common errors and how to respond.
